By order no. 10663 of 19 April 2024, the Italian Court of Cassation stated that the employer bears the burden of proof in proving that remuneration has been properly paid.
The worker filed an application for summary judgment to obtain an order against the company to pay the amount indicated in the November 2015 pay slip.
In the first instance, the first instance Court found that the payment was due to the worker.
The company appealed to the Court of Appeal. The Court of Appeal upheld the first instance decision, ruling that the employer had not discharged its burden of proof relating to proving in court that the sum had been paid.
The Italian Court of Cassation – confirming the Court of Appeal decision – preliminarily noted that, once the existence of an employment relationship has been ascertained, the employer is under a strict duty of proof to establish that the remuneration has been paid. The employer can do this by means of the normal documentation i.e., regulatory pay slips bearing the worker’s signature. If the employer cannot prove that it has paid the remuneration due to the employee through pay slips, it must provide appropriate documentation of the relevant payments that it has made in relation to the employee’s individual claims.
According to the Italian Court of Cassation, giving employees at the time of payment of remuneration a statement containing an indication of all the constituent elements of the remuneration does not prove payment where the worker states that it is inconsistent with the remuneration actually paid.
According to the Italian Court of Cassation, the burden falls on the worker only if he/she, after signing the pay slip, alleges that the remuneration indicated in the pay slip is inconsistent with the remuneration paid.
As the present case did not fall within the latter situation, the Italian Court of Cassation rejected the company’s appeal.
Other related insights:
In judgment no. 32412 of 22 November 2023, the Italian Court of Cassation dealt with the lawfulness of a dismissal by the formal employer of a worker employed under a sham outsourcing contract.
A worker brought legal proceedings to obtain a declaration of the existence of an employment relationship with the principal company, and that, consequently his dismissal was ineffective because it was ordered by the contractor and not by the ‘actual’ employer. The worker also sought reinstatement. The Italian Court of Cassation, hearing the case, first affirmed that the worker was not precluded from bringing legal proceedings for a declaration of the existence of a sham intermediary and to obtain the recognition of an employment relationship with the principal including in the event of dismissal by the contractor. The Italian Court of Cassation also established that in the case of a sham intermediary, the power to dismiss must in any case be exercised by the actual employer and not by the sham one, under penalty of ineffectiveness of the dismissal; the actual employer, in fact, cannot rely on the contractor’s dismissal as an act affecting management of the relationship.
By order no. 10734 of 22 April 2024, the Italian Court of Cassation ruled that, in the event of a failed conciliation attempt, as required under Article 7 of Italian Law no. 604/1966 in the case of dismissal for justified objective reasons of workers hired before March 2015, the employer is not required to send the employee notice of dismissal, as the indication of the intention to interrupt the relationship contained in the minutes drawn up before the Local Employment Inspectorate (Ispettorato Territoriale del Lavoro, ‘ITL’) is sufficient.
As a result of the conciliation attempt held before the ITL under Article 7 of Italian Law no. 604/1966, the minutes of failure to conciliate were drawn up, in which the employer’s intention to proceed with the dismissal of the employee for justified objective reasons was formally stated.
Subsequently, the worker challenged her dismissal, objecting, in the first place, that it was ineffective because it was not in writing.
As part of the so-called ‘summary phase’ of the Fornero Proceedings, as well as in the subsequent opposition phase, the Judge found that the dismissal had not been in writing, with a consequent order against the employer to reinstate the employee.
The employer appealed to the Italian Court of Appeal which overturned the judgment handed down in the context of the opposition phase.
The Italian Court of Appeal ruled, on the one hand, that there had been written notice of dismissal because the intention to terminate the employment relationship was contained in the minutes signed by both parties at the end of the procedure under Article 7 of Italian Law no. 604/1966. However, the Court also held, on the other hand, that as the principle of fairness and good faith had been breached with respect to the choice of the worker to be dismissed, the dismissal was unlawful and made an order against the employer under the provisions of Article 18, paragraph 7, of the Italian Workers’ Charter.
The employee appealed against the judgment before the Italian Court of Cassation and the company, as well as submitting a defence lodged, in turn, a cross-appeal.
The Italian Court of Cassation – in upholding the second instance judgment – noted, first of all, that the purpose of a written notice of dismissal lies in the need to make the employee aware of the action interrupting the relationship.
This function – the Court continued – is fulfilled if the intention to proceed with the termination is formally stated by the employer, in an institutional setting (such as the ITL where the conciliation attempt under Article 7 of Italian Law no. 604/1966 is held), in minutes that are also signed by the employee.
The legislative wording of Article 7, paragraph 6, third sentence of Italian Law no. 604/1966 (“If the conciliation attempt fails and, in any case, the deadline referred to in paragraph 3 has elapsed, the employer may give notice of the dismissal to the worker”) outlines a legal condition (precedent) and a term (dilatory). For this reason, once the first has been fulfilled or the second has expired, the employer “may give the employee notice of the dismissal”.
With regard to the meaning to be attributed to the legal condition precedent (i.e., the failure of the conciliation attempt), according to the Italian Court of Cassation “the literal reading” suggests that the legislator “has given importance to the objective failure of the conciliation attempt rather than to the chronological and formal date of the finalisation of the minutes drawn up in the local conciliation commission”.
Moreover, the Court continues, “the wording of the provision does not require that the notice of dismissal which may be given by employer ‘if the conciliation attempt fails’, must take place in a different context and subsequent to that of the aforementioned minutes”.
In this sense, the Court argues, “nothing to protect the interests of the worker could plausibly justify the assumption that the notice of dismissal to the worker must necessarily take place in a context distinct from the minutes drawn up at the meeting before the appropriate commission, provided of course that the notice of dismissal already stated in that forum complies with the additional provisions on dismissal, starting with that of the [notice being] in writing under Article 2, paragraph 1 of Italian Law no. 604/1966”.
According to the Italian Court of Cassation judges, it follows that, where the conciliation attempt under Article 7 of Italian Law no. 604/1966 fails and the employer confirms his or her intention to terminate the relationship, there is no need to subsequently send the employee a letter of dismissal.
On these grounds, the Italian Court of Cassation therefore rejected the appeal brought by the worker, confirming that she was only entitled to compensation and not reinstatement.
Other related insights:
An employee dismissed for drug trafficking has been reinstated and compensated. The drug related conviction occurred in the past and pre-dated the employment, when the company took over the staff from the outgoing company after taking over a contract held under a public administration tender. The Italian Court of Cassation, employment division, by order no. 8899 of 4 April 2024 held that the material fact existed but that this did not give rise to a legal ground: an old conviction has no disciplinary relevance where the employer does not prove “the relevance of the old facts on the relationship’s operation”. A criminal judgment that becomes final during the relationship, onthe other hand, may trigger the employer’s withdrawal for just cause if the relationship of mutual trust with the company fails.
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The quantity of work is not synonymous with the quality of the work. Therefore, if it is a question of comparing a part-time worker with a full-time worker in relation to the amount of work performed (quantity), it is appropriate to apportion the salary based on the hours worked (so that the part-time worker receives, in proportion to the hours worked, the same pay as the full-time worker). But if it is a question of comparing workers of the same level where one is part-time and the other full-time, in relation to the service provided (quality), then it is not fair, and indeed it is occupational discrimination, to apportion experience acquired (professional skills) on the basis of hours worked. This was established by the Italian Court of Cassation in judgment no. 4313 of 19 February 2024, which added that penalising part-time work is discriminating against women, who are more likely to work part-time.
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